The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, August 17, 2005

Did my side lose, or did the other side win?

Commenting on my post from earlier this week about the jury trial I just lost, one of my readers wrote:

Judging by your oblique description, seems to me that the other side won the case, rather than you losing it.

Does that make any sense given the context to which we aren't totally privy?

That's a really interesting, and implicitly flattering, question, for which I thank him heartily. It certainly does make sense. But as much as I'd like to use that excuse to help lick my wounds, I don't think it really fits this particular case (about the specific details of which, I still can't really comment).

Important warning: By the time a lawyer has tried a case to a jury verdict, his or her objectivity has almost always been thoroughly shredded. When I sat down after my final chance to talk to this jury — after my rebuttal to the lead defense lawyer's closing argument — I was absolutely, positively "drunk on my own fumes" and convinced we were about to win a big one. In hindsight, I was obviously very, very drunk on my own fumes, to the point of hallucination; but that's actually entirely normal by that point in a case. It takes enormous effort and discipline to try to maintain (or recapture) any objectivity. In fact, when the stakes permit one the luxury, it's a great idea to have "shadow" or "standby" counsel for your team (maybe a senior lawyer who's been brought in at the last minute) mostly observing from the sidelines with the express instruction and intention not to breath your side's fumes! Which is to say that I can't fully trust my own observations about this particular trial yet, and I'm likely to be somewhat more objective in, say, another year or two thinking back about it than I am now, while the wounds are still oozing.

However, trying to be objective, I think I can say this: My opponents were very capable lawyers with at-least-adequate prior experience, and probably more than that, and certainly with real guts. I seriously doubt that their team, collectively, has as much jury trial experience as I have, and I think that I was probably more entertaining than they were. But they'd certainly been to the big dance enough not to trod on their own toes, and their overall approach was very conservative, not at all flashy — which certainly seems to have turned out to be the winning approach with this particular jury. (I won a lot of defense verdicts as the less flashy, less experienced lawyer when I was uniformly on that side of the docket earlier in my career.) "Entertaining" doesn't always mean "effective."

As I wrote in my earlier post, I was generally satisfied with my own overall performance. Although new to this particular case, I was the first-chair for our side: I did both the jury selection (the "voir dire" examination) and the closing arguments, and handled all of the expert witnesses (presenting our own experts, and cross-examining the defendant and the defense team's experts) in a very expert-intensive case in which quite a few of the experts hadn't previously given oral depositions. My colleagues handled the opening statement and the presentation of our clients and another member of their family, and did a very solid job on that. But for a variety of reasons, our expert witnesses, both in-person and via videotaped depositions, were candidly obliged to acknowledge some of the weaknesses in our case, and we had some post-verdict indications that their concessions — which the defense team very skillfully exploited — had a much bigger impact on the jury than anything that either set of lawyers said or did.

If that's true, it's probably a good thing, in the big picture. The relative skill of the lawyers sometimes does decide close cases. (This is called "value-added lawyering," which I'll probably write more about in the future.) But in a just and perfect world, it ought not, and unless there's a huge imbalance — which in this case, there certainly wasn't — it usually doesn't. Likewise, the trial judge's rulings can sometimes swing a case one way or the other in a dramatic (and possibly erroneous) fashion, which is why there are appellate courts to review those rulings. But most appeals end up with the trial judge being affirmed, which is also probably a good thing overall.

So no, I don't think we got out-lawyered, nor (obviously) did our opponents; I don't believe that the quality of either sides' lawyers determined the outcome of this particular case. Other factors, cumulatively, did that. And our "side" lost — meaning by that our total presentation, including everything that the jury heard from our clients, from our experts, from the other side's witnesses, and, yes, what they heard from me and my colleagues. In the hoary aphorisms, victory may have many parents and defeat may be an orphan. But in the real world, I have to admit that I'm one of the parents of this defeat, if by no means the sole parent. And the other side's victory does indeed have many parents, being neither immaculate nor miraculous, but rather the result of how the cards of our respective hands were played out, where the chips fell, and the guts their side displayed in seeing their wager all the way through to a verdict (for which I give them great credit; willingness to take a verdict is one of the key distinctions between "trial lawyers," who are rare, and "litigators," who are legion).

In other words, they won it and we lost it — using "they" and "we" in their broadest senses. That, too, is still some comfort — it's certainly better than a result after which one is left doing serious self-second-guessing (like "Oh my stars, I knew I shouldn't have called Witness Jones, and I never should have made that fifth hearsay objection, that just killed us!"). But I can't duck my share of the responsibility for the loss, and neither would I deny our opponents their due glory (considerable, but not unlimited) for the win.

The bottom bottom-line, once again, is simply this: We got whipped, and they whipped us — so said twelve citizens good and true. And that's why we have juries in the first place. I genuinely do respect this one's verdict, including the portion of the verdict that, inevitably, must legitimately reflect poorly on our side's lawyering. And to the extent I can learn something from it, I'll try to. Ask me about that again in, oh, say, about a year, or maybe two. But for now, my wounds having mostly scabbed over, it's time to dust myself off, stare down that bronco out of one bleary eye, and climb back on for the next ride.

I was on a jury panel this week on a agrevated sexual assualt case here in Dallas. I was toward the end of the pool of 72 on the panel and was not selected. The defense was pleading insanity. The defense attorney was poor at best during voir dire. Beldar have you ever had a prospective juror that has read your blog?

Your comments concerning the projected image of a lawyer to the jury reminds me of a voir dire that I was subjected to as a potential juror once. The case was a criminal case in which the defendant tried to kill his girfriend by bashing her in the head repeatedly with a chunk of concrete. Luckily the defendant plead out and none of us were picked because I probably would have loved to give the miscreant the maximum. Be that as it may, the defense lawyer made what I percieved as a tactical error right off the bat, he opened his mouth. This guy had the worst "ebonics" accent I've ever heard, and I was born in backwoods Mississippi and raised here in Houston. I've heard some really awful accents in my day. He kept "axing" people this and "axing" people that. I just wanted to stand up in the courtroom and scream "If you keep axing people like this I'm going to ask the bailiff to arrest YOU for attempted murder! You are KILLING the english language!"
But instead I bit my tounge. But I ask you, don't you think that after graduating high school, going to college and then on to law school that the guy MIGHT have made an effort to learn to speak the language correctly? The lawyer's poor enunciation made me want to convict the defendant merely because he was obviously too stupid to hire a real lawyer!

Beldar, I am interested in your comments about expert witnesses. I have the impression (or perhaps prejudice) that lawyers (particularly plaintiff's lawyers) have access to a pool of "professional" expert witnesses who make a substantial portion of their income by testifying in trials and who are willing to testify to practically anything. So as a juror I would probably find the inability of your side to find a single expert witness who would even pretend to believe in your case significant.

I also have the impression that in some tort cases the plaintiffs don't have a lot of evidence that the defendents caused the specific injuries in question but try to make up for this by presenting evidence that the defendents were reckless and irresponsible in general.

Of course I (fortunately) have no first hand experience with tort trials at all so I would be interested in the perspective of an actual tort lawyer on the above issues.

Once won a case on voir dire. Nothing brilliant I did or dumb the other guy did, but the defense was built around the position that plaintiff's claim was inherently unbelievable - no collection agency would act so foolishly!

On voir dire a prospective juror (promptly dismissed) recounted a bit of personal history on all fours with what my client was going say.

From then on, all I had to do was keep from tripping over my own feet to win a nice judgment.

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